# The Attorney General of Texas April 9, 1979 MARK WHITE Attorney General
Honorable Gibson D. (GiblLewis

Chairman House Committee on Intergovernmental Affairs OpinionNo. Mw-10 Re: Whether a regional transit authority established under article State Capitol Austin, Texas lllSx, V.T.C.S., is covered by the Tort Claims Act Dear Representative Lewis: You have requested our opinion as to whether the Texas Tort Clalms Act, article.625249, V.T.C.S., hisapplicable to a regional transit authority created pursuant toarticle lll6x, V.T.C.S. The Tort Claims Act applies to every “unit of government” in the state, section 3, but it is not applicable
“to any proprietary function of a municipality.” Section 16(a). You ask whether a regional transit authority falls within the exception of section 16. Since it is our view that a’reglonal transit authority does not exercise any proprietary functicn, we need not address the question of whether it may be deemed a “municipality” for purposes ofarticle 6252-B. It is clear that a regional transit authority created pursuant to article lll6x, defined as a “publicbody corporate and politic,” section 6(a), ls a “unit of government” within the meaning of the Tort Claims Act. Section S(a) of article lll6x provides that a duly created authority exercises

public and essential governmental functions, [and has] all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this Act, including, but not limited to, the following.

. . :

. . . . (e)

. . . the power to acquire, construct, complete, develcp, own, operate and maintain a [rapid transit] system or systems within its boundaries

. . . (Emphasis added). Under the language of the statute, then, the operation of a rapid transit system by an authority is described as a “governmental function.”

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In City of Corsicana v. Wren, 317 B.W.2d 516(Tex. 1956), the Supreme Court considered a statute containing a legislative declaration that a municipality’s operation of an airport is a governmental functicn. The court held that, solong as

the legislative classification as governmental (or nongovernmental) CnMot be called arbitrary **or** clearly at **vah3nCe** with ‘well established and well defined’ law on the subject, the classification ought to be respected bythe courts. 317S.W.2d at 520. We do not believe that the classification at issue here mav be so labeled. & Imperial Production Corp. v. City ofSweetwater, 210P.2d 917(5th Ci;. lSS4); Braun v. Trustees of Victoria Independent School District, ll4 S.W.2d947, 950 (Tex. Clv. App BanAntonio 1936,writ ref’d); Garaa v. BdinburgConsolidated School District, 576 S.W:2d916 (Tex. Civ. App. - Corpus Christi 1979);Pontarelli Trust v. City of McAllen, 465 B.W.2d604 (Tex. Civ. App. - Corpus Christi 1971, no writ). In our opinion, Wren compels the conclusion that the legislature is authorized to classify the powersregional transit authority as exclusively governmental. Asa result, it is our view that the Tort Claims Act is applicable to a regional transit authority created pursuant to article lll6x. SUMMARY

The Texas Tort Claims Act, article 6252-19,V.T.C.B.,is applicable to a regional transit authority created pursuant to article lll6x, V.T.C.S.

MARK WHITE Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney General TEDL. HARTLEY Executive Assistant Attorney General Prepared by Rick Gilpin Assistant Attorney General APPROVED: OPINIONCOMMITTEE C. Robert Heath, Chairman DavidB.Brooks

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Rick Gilpin WilliamGReid Bruce Youngblood

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